The Law of Global Space: Rethinking the Legalization of World Politics

46 Pages Posted: 3 Aug 2010 Last revised: 5 Aug 2010

M. Patrick Cottrell

Linfield College - Political Science

David M. Trubek

University of Wisconsin Law School

Date Written: August 3, 2010

Abstract

This paper seeks to broaden received notions of the role of law in world politics. While conventional approaches to legalization conceive of law as regulation and stress compliance with preexisting rules, the paper asserts that especially in the complex arena of transnational governance dubbed “global space,” law often operates very differently. In many cases law-like processes operate more as a framework for collective problem solving in situations of complexity and uncertainty where multiple actors are involved and multiple levels must be coordinated than as a set of fixed rules. Such a normative order looks very different than the conventional model: it may form norms through bottom up participatory processes not by top-down legislation; rely primarily on open-ended rather than precise legal rules; and deploy flexible and revisable standards. Although such features are present in domestic law, they may be more important in global space. Drawing from the “new governance” literature, the paper develops an alternative framework that embraces the full range of law-like processes, paying particular attention to how the communicative, facilitative, and coercive aspects of the law may interact in global space. It conducts a preliminary empirical analysis of the expanded vision of law in global space in three cases – the WTO council and committee system, the EU’s Water Framework Directive, and the Tuna-Dolphin case. While these cases all involve some of the more legalized areas in international affairs, we show that each relies heavily on new governance-type mechanisms to operate.

Keywords: Global Governance, International Law, New Governance, Legalization

JEL Classification: K33, K40

Suggested Citation

Cottrell, M. Patrick and Trubek, David M., The Law of Global Space: Rethinking the Legalization of World Politics (August 3, 2010). Univ. of Wisconsin Legal Studies Research Paper No. 1124. Available at SSRN: https://ssrn.com/abstract=1652771 or http://dx.doi.org/10.2139/ssrn.1652771

M. Patrick Cottrell

Linfield College - Political Science ( email )

United States

David M. Trubek (Contact Author)

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States

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